COURT OF APPEALS, STATE OF COLORADO Colorado State Judicial Building 101 W Colfax Ave Suite 800 Denver, CO 80202 (303) 837-3785 Appeal From The District Court Larimer County, Colorado Honorable Gregory M. Lammons, District Court Judge Trial Court Case No. 09 CV 1324 ________________________________________ Defendant-Appellant: KERRI L. MULLETTE v. Plaintiff-Appellee: AARON M. McCAMBRIDGE
COURT USE ONLY Kent N. Campbell, #13170 Kimberly B. Schutt, #25947 WICK & TRAUTWEIN, LLC 323 South College Avenue, Suite 3 P.O. Box 2166 Fort Collins, CO 80522 Phone Number: (970) 482-4011 FAX Number: (970) 482-8929 E-mail: [email protected] [email protected]
Case No: 11CA1047
APPELLANT’S OPENING BRIEF
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CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with all requirements of C.A.R. 28
and C.A.R. 32, including all formatting requirements set forth in these rules.
Specifically, the undersigned certifies that:
The brief complies with C.A.R. 28(g) because it does not exceed 30 pages.
The brief complies with C.A.R. 28(k) because it contains under a separate
heading (1) a concise statement of the applicable standard of appellate review with
citation to authority; and (2) a citation to the precise location in the record
(R._____, p.___), not to an entire document, where the issue was raised and ruled
on.
Wick & Trautwein, LLC
By: s/ Kimberly B. Schutt_____________ Kimberly B. Schutt, #25947
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TABLE OF CONTENTS CERTIFICATE OF COMPLIANCE ........................................................................ ii TABLE OF AUTHORITIES ..................................................................................... v I. ISSUES PRESENTED FOR REVIEW ........................................................... 1 II. STATEMENT OF THE CASE ....................................................................... 1 A. Nature of the Case, Course of Proceedings and Disposition Below ....... 1 B. Statement of Facts .................................................................................... 3 i. The testimony regarding the accident .............................................. 3 ii. The instructions given to the jury .................................................... 7 iii. The jury’s inconsistent verdict ......................................................... 9 III. SUMMARY OF ARGUMENT ..................................................................... 10 IV. ARGUMENT ................................................................................................. 12 A. The trial court erred in denying Mullette’s motion for new trial due to
irreconcilable inconsistencies in the jury’s verdict ................................ 12 1. Standard of Review and Preservation for Appeal .......................... 12 2. Argument ........................................................................................ 12
a. The jury’s verdict is first inconsistent in its finding of negligence on the part of McCambridge, but its failure to assign any percentage of negligence to him ........................................ 13
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b. The jury’s verdict is also inconsistent in its finding that
McCambridge was negligent, but not a cause of his own claimed injuries, damages or losses; these two findings are irreconcilable given that McCambridge’s acts of negligence were part of the same sequence of events in the seconds just prior to the collision .................................................................. 15
c. Given the nature of the jury’s inconsistent verdicts, and
the intertwined nature of the issues of liability and damages in this case, the required remedy is a new trial on both issues ............................................................................ 19
B. The trial court should have entered a judgment notwithstanding the
verdict on Mullette’s comparative negligence defense, and then set the matter for a new trial as to the percentage of comparative negligence between the parties ................................................................................. 20
1. Standard of Review and Preservation for Appeal .......................... 20
2. Argument ........................................................................................ 21 V. CONCLUSION ................................................................................................. 26 CERTIFICATE OF SERVICE ................................................................................ 27
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TABLE OF AUTHORITIES CASES: Albo v. Shamrock Oil & Gas Corp., 415 P.2d 536 (Colo. 1966) ............................ 18 Cardenas v. Financial Indemn. Co., 254 P.3d 1164 (Colo.App. 2011) .................. 20 Caulkins v. Albi, 431 P.2d 17 (Colo. 1967) ............................................................. 18 Clark v. Bunnell, 470 P.2d 42 (Colo. 1970) ............................................................ 23
City of Aurora v. Loveless, 639 P.2d 1061 (Colo. 1981) ................................... 15, 17 Colorado Springs and Interurban Railway Co. v. Allen, 135 P. 790 (Colo. 1913) ................................................................................. 18 Consolidated Hardwoods, Inc. v. Alexander Concrete Construction, Inc., 811 P.2d 440 (Colo.App. 1991) ..................................................................... 12 Converse v. Zinke, 635 P.2d 882 (Colo. 1981) ........................................................ 20 Fletcher v. Porter, 754 P.2d 788 (Colo.App. 1988) ................................................ 17 H&H Distributors, Inc. v. BBC International, Inc., 812 P.2d 659 (Colo.App. 1990) ............................................................... 12, 17 Prentiss v. Johnston, 203 P.2d 733 (Colo. 1949) .................................................... 24 Ricklin v. Smith, 670 P.2d 1239 (Colo.App. 1983) .................................................. 14 Ridenour v. Diffee, 133 Colo. 467 P.2d 280 (1956) .......................................... 23, 24 Union Pacific Railroad Company v. Cogburn, 315 P.2d 209 (Colo. 1957) ............ 24 Wulff v. Christmas, 660 P.2d 18 (Colo.App. 1982) ................................................. 19
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STATUTE:
1. C.R.S. §42-4-604(1)(a)(II) ................................................................................. 8
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COMES NOW the Appellant, Kerri Mullette, by and through her counsel of
record, WICK & TRAUTWEIN, LLC, and respectfully submits the following
Opening Brief:
I. ISSUES PRESENTED FOR REVIEW
A. Whether a new trial on all issues is required, where the issues of negligence
and causation are so intertwined and the jury’s verdict on both issues is inherently
inconsistent; and
B. Whether the trial court should have entered a judgment notwithstanding the
verdict on Mullette’s comparative negligence defense, and then set the matter for a
new trial as to the percentage of the comparative negligence between the parties,
given the undisputed facts at trial that Plaintiff Aaron McCambridge failed to look
and see Mullette’s vehicle in plain sight before McCambridge pulled into the path
of Mullette’s vehicle.
II. STATEMENT OF THE CASE
A. Nature of the Case, Course of Proceedings and Disposition Below.
This appeal arises out of a motor vehicle accident which occurred in Fort
Collins, Larimer County, Colorado on December 29, 2006. Plaintiff Aaron
McCambridge filed a personal injury action against Defendant Kerri Mullette in
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the Larimer County District Court on December 23, 2009, alleging negligence and
negligence per se. Complaint and Jury Demand, CD at pages 1-4. Mullette timely
filed an Answer denying the claims and asserting several affirmative defenses,
including sudden emergency and comparative negligence. Answer and Jury
Demand, CD at pages 10-13.
The matter came on for a three-day jury trial beginning February 15, 2011.
The jury returned Special Verdict Form B in which the jury answered “yes” to the
interrogatory asking whether McCambridge was negligent, yet apportioned “0”
percent negligence to McCambridge. Special Jury Verdict Form B, CD at pages
518-519. The jury, after having found McCambridge negligent, also answered
“no” to the interrogatory concerning whether McCambridge’s negligence was a
cause of his own claimed injuries, damages or losses. Id. Based on this verdict, the
trial court entered judgment in favor of McCambridge. Entry of Judgment, CD at
page 433.
Mullete filed a motion for a new trial based on the irreconcilable
inconsistencies in the verdict. Defendant’s Motion for New Trial, CD at page 440.
Mullette also filed a motion for judgment notwithstanding the verdict on the
grounds that, based on the undisputed evidence, the trial court should have found
McCambridge comparatively negligent as a matter of law and granted a new trial
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as to the percentage of negligence and causation of the claimed injuries.
Defendant’s Motion for Judgment Notwithstanding Verdict Re: Comparative
Negligence Defense, CD at page 569. The trial court denied both motions, and this
timely appeal followed. Order Denying Defendant’s Motion for New Trial, CD at
page 638; Order Denying Defendant’s Motion for Judgment Notwithstanding
Verdict, CD at page 642.
B. Statement of Facts.
i. The Testimony regarding the Accident.
The accident underlying this appeal occurred on December 29, 2006, at the
intersection of Trilby Road and South Highway 287 (College Avenue) in Fort
Collins, Colorado. Complaint and Jury Demand, CD at page 2 ¶7; Answer and
Jury Demand, CD at page 11 ¶7. The testimony regarding the facts of the
accident occurrence came through three witnesses: Defendant Mullette, Plaintiff
McCambridge and the investigating officer, Scott Boskovich.
As Officer Boskovich testifed, the day of the accident was cloudy, it was
snowing and the roads were covered in snow. Transcript of Trial dated February
15, 2011, CD at page 1206:16-20. In fact, Officer Boskovich testified that he was
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running from crash to crash that morning, as there were many accidents. Id., CD at
page 1206:21-22.
Though Defendant Mullette resided in Rawlins, Wyoming, she spent the
night of December 28, 2006, at the Holiday Inn Express hotel in Fort Collins
because her mother had eye surgery that day. Transcript of Trial dated February
17, 2011, CD at page 838:8-10. The next morning, on December 29th, Mullette’s
mother had a follow-up appointment with her eye doctor in Loveland at 9:30 or
9:45 a.m.. Id., CD at page 838:19-23; 839:9-12. Thus, Mullette and her mother
left the hotel on Harmony Road in Fort Collins about 8:15 or 8:30 a.m. Id., CD at
page 838:24-25; 839:1. She was driving her mother’s Jeep Cherokee at the time,
and she believed they had left plenty of time to get to Loveland for the
appointment. Id., CD at page 838:1-4; 839:21-24. Because it had snowed several
inches the night before, the roads were wet and slushy. Id., CD at page 840:3-6.
Mullette proceeded to drive west on Harmony Road to its intersection with
College Avenue/Highway 287, and then turned left heading south on Highway
287. Traffic was slower than normal because of the weather conditions. Id., CD at
page 840:11-14. The posted speed limit on Highway 287 was 55 miles per hour,
but it was undisputed that Mullette was traveling approximately 30-35 miles per
hour. Id., CD at page 843:5-10; 840:15-17.
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When Mullette was just a few car lengths from the intersection of Trilby
Road and Highway 287, she suddenly realized she could not see which traffic light
was actually illuminated. Id., CD at page 840:15-17; 843:1-4. The traffic signal
lights were either snowed in or iced over, and she could not tell what color light
was lit up. Id., CD at page 844:18-25. She had never before encountered any
traffic lights caked with snow or ice, and had not expected this situation. Id., CD
at page 842:7-10, 14-16.
Mullette quickly noted that cross traffic on Trilby Road was stopped. Id.,
CD at page 842:17-19. She thus thought that the light for southbound Highway
287 must be green. Id., CD at page 844:5-9. She made the quick decision to
continue through the intersection, believing it was safe to go. Id., CD at page
844:11-13, 17-18. She was assessing all of this information in a period of
approximately three to four seconds. Id., CD at page 844:19-22.
Meanwhile, Plaintiff McCambridge was in his car and stopped with the
traffic on Trilby Road. Transcript of Trial dated February 16, 2011, CD at page
952:19-22. He was first in the line of vehicles waiting to turn left onto Highway
287. Id., CD at page 952:19-22. When the light first turned green, his attention
was focused straight ahead. He then realized he had a green turn arrow and
proceeded into the intersection. Id., CD at page 952:23-25;953:1-2. He did not
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look either left or right before proceeding into the intersection. Id., CD at page
998:12-19. Nor had he looked either left or right while stopped at the intersection
waiting for the light to turn green. Id., CD at page 998:9-11.
Mullette saw McCambridge’s car start to pull out into the intersection.
Transcript of Trial dated February 17, 2011, CD at page 844:24-25. She hit the
brakes, tried to stop and just slid through the intersection, colliding with
McCambridge’s vehicle. Id., CD at page 845:3-6. McCambridge did not see
Mullette’s Jeep in his peripheral vision until just immediately before the collision.
Transcript of Trial dated February 16, 2011, CD at page 1000:21-23. He had not
actually begun the arc of his left hand turn at the moment of impact. Id., CD at
page 1002:7-9. He did not take any evasive maneuvers. Transcript of Trial dated
February 17, 2011, CD at page 845:19-21. Further, he admitted there was nothing
blocking or impeding his view of the Mullette vehicle had he looked in either
direction before entering the intersection. Transcript of Trial dated February 16,
2011, CD at page 1000:11-16.
Following the collision, Mullette told McCambridge she did not see the
traffic light for southbound Highway 287 was red because it was covered in ice
and snow. Id., CD at page 1004:6-12. As testified to by Officer Boskovich, the
type of LED traffic lights as those in place at the subject intersection can be
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problematic in terms of snow. That is, snow does not melt off the LED lights as
quickly as it melts off incandescent lights. Transcript of Trial dated February 15,
2011, CD at page 1217:24-25; 1218:1-6, 19-25; 1219:1-13.
Officer Boskovich testified that, in his opinion, Mullette was driving at a
safe speed for the conditions by traveling 30 miles per hour. Id., CD at page
1219:25; 1220:1-3. The officer also testified that, even if McCambridge had a
green left-turn arrow, he too should have been cautiously entering the intersection
on the green light. Id., CD at page 1220:4-9.
ii. The instructions given to the jury.
Based upon this evidence presented at trial, Defendant Mullette argued at
trial that she was not negligent. However, if the jury found she was negligent, she
contended the jury must also find McCambridge negligent for having failed to look
either right or left before entering the intersection on the green light, on the theory
that her car would have been plainly visible if he had in fact looked before entering
the intersection. Final Jury Instructions, CD at page 474-475. The jury was
instructed according to this theory, following Colorado’s pattern jury instructions
on these issues, as follows:
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a) Instruction No. 25, CD at page 490: “To look in such a manner as to fail
to see what must have been plainly visible is to look without a reasonable
degree of care and is of no more effect than not to have looked at all.”
b) Instruction No. 27, CD at page 520: Instructed the jury that, at the time
of the accident, there was a statute in effect (C.R.S. §42-4-604(1)(a)(II))
which provided, “Vehicular traffic facing a green arrow signal, shown
alone or in combination with another indication, may cautiously enter the
intersection only to make the movement indicated by such arrow or such
other movement as is permitted by other indications shown at the same
time.” It further instructed the jurors that if they found such a violation,
it could only consider it if it was also a cause of the claimed injuries,
damages or losses.
c) Instruction No. 31, CD at page 504: Instructed the jury the affirmative
defense of comparative negligence was proved if it found that
McCambridge was negligent and the negligence of McCambridge was a
cause of his own claimed injuries, damages or losses.
d) Instruction No. 32, CD at page 505: Instructed the jury as to assigning
percentages of negligence.
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e) Instruction No. 33, CD at page 506: Instructed the jury on how to
complete Special Verdict Form B.
f) Instruction No. 34, CD at page 508: Instructed the jury that “[a] driver
must maintain a proper lookout to see what that driver could and should
have seen in the exercise of reasonable care.”
g) Instruction No. 35, CD at page 509: Instructed the jury that “[a]lthough
a driver may have the right of way, the driver must exercise reasonable
care considering the existing conditions.”
iii. The jury’s inconsistent verdict.
Following deliberation, the jury completed Special Verdict Form B, found at
CD page 518-520. They answered “Yes” to question number 4, which stated,
“Was the Plaintiff, Aaron M. McCambridge, negligent?” Yet, having found
McCambridge negligent, the jury went on to answer question number 7 with a 0%
for McCambridge when assigning the parties’ respective percentages of
negligence. Further, having found McCambridge negligent in the accident – the
only event which could have caused any injuries, damages or losses to
McCambridge – the jury answered “No” to question number 5, which asked them
if McCambridge’s negligence was a cause of his own claimed injuries, damages or
losses.
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Given the evidence and jury instructions, it was Mullette’s contention below
that the jury’s verdict was inconsistent, in that the jury could not find
McCambridge negligent in the same accident event in which they also found
Mullette was negligent, yet not assign any percentage of negligence to
McCambridge or find that McCambridge’s negligence also caused his own
claimed injuries, damages or losses. Mullette thus filed the post-trial motions for
a new trial and judgment notwithstanding the verdict, both of which were rejected
by the trial court. Mullette now seeks this Court’s review of these issues.
III. SUMMARY OF ARGUMENT
The trial court erred in denying both Mullette’s motion for a new trial and
her motion for judgment notwithstanding the verdict.
Mullette should have been granted a new trial based upon the inconsistencies
in the jury’s verdict. The verdict was inconsistent in that it found McCambridge
negligent, yet not negligent, for the same discreet accident event. The only
grounds on which it could have found McCambridge negligent was for his failure
to look either left or right before entering the intersection on the green arrow and
his failure to see Mullette’s vehicle in the seconds immediately prior to the
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collision. By failing to assign any percentage of negligence to McCambridge, the
jury disregarded the law of comparative negligence in Colorado.
The verdict is also inconsistent in the jury’s finding that McCambridge was
negligent, yet not a cause of his own claimed injuries, damages or losses. The
negligence of McCambridge in failing to look either left or right before entering
the intersection was not a distinct and unrelated event; it was part of the same
sequence of events in the seconds immediately prior to the collision. Therefore, it
is impossible to reconcile the jury’s finding of negligence on the part of
McCambridge with its finding that he was not a cause of his own injuries, damages
or losses. Thus, the judgment should be reversed based upon these inconsistent
verdicts and the matter remanded for a new trial as to liability and damages, since
those issues were so intertwined in this case.
Likewise, given the undisputed facts and pertinent law, no reasonable person
could have reached the same conclusion as the jury here, thus requiring entry of a
judgment notwithstanding the verdict. The law in Colorado is that a driver has to
cautiously proceed into an intersection, even when that driver has the right of way.
Based upon his failure to look either way before entering the intersection and to
see what was plainly visible, McCambridge was negligent as a matter of law.
There is insufficient evidence to support the jury’s apportionment of 0%
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negligence to him. Thus, for this additional reason, Mullette should be granted a
new trial to determine the relative percentages of fault and damages.
IV. ARGUMENT A. The trial court erred in denying Mullette’s motion for new trial
due to irreconcilable inconsistencies in the jury’s verdict. 1. Standard of Review and Preservation for Appeal.
“When there is a charge of inconsistent verdicts, an appellate court must
review the jury instructions, the record and the jury verdict forms. If there is any
evidence to support the verdicts, they will not be reversed for inconsistency.”
Consolidated Hardwoods, Inc. v. Alexander Concrete Construction, Inc., 811 P.2d
440, 442 (Colo.App. 1991); H&H Distributors, Inc. v. BBC International, Inc., 812
P.2d 659, 663 (Colo.App. 1990).
This issue was preserved for appeal in Mullette’s timely motion for new trial
filed February 23, 2011. [CD at page 440]. It was ruled upon by the trial court in
its order denying the motion for new trial on April 11, 2011. [CD at page 639].
2. Argument Here, there are two fundamental, irreconcilable inconsistencies within the
jury’s verdict. The first arises from the jury’s finding of McCambridge to have
been negligent and not negligent, all at the same time in the same automobile
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accident. The second inconsistency concerns the jury having found McCambridge
negligent but not a cause of his own claimed injuries, damages or losses.
a. The jury’s verdict is first inconsistent in its finding of negligence on the part of McCambridge, but its failure to assign any percentage of negligence to him.
With respect to the first inconsistency, it is axiomatic that a party cannot be
negligent and not negligent at the same time within the same discreet event. Here,
the only evidence of McCambridge’s negligence which was tried and had to do
with his operation of his motor vehicle was his admitted failure to look either left
or right before entering the intersection on a green left turn arrow. There is no
other factual basis for the jury’s finding in response to interrogatory number 4 in
Special Verdict Form B that McCambridge was negligent. Yet, while the jury
found McCambridge so negligent in this accident, it failed to apportion any
percentage of negligence to McCambridge for the same accident event. On the
specific facts presented at trial here, the jury’s verdict is fundamentally flawed and
irreconcilable.
By having found McCambridge negligent on the above accident facts yet
failing to apportion any percentage of negligence to him, the jury effectively
nullified the doctrine of comparative negligence. The only negligence tried and
supported by the evidence was the comparative negligence of the parties in
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connection with their driving in the seconds prior to and during the collision. The
only possible way that the jury could have found McCambridge to have been
negligent in his driving yet apportioned no percentage of negligence to him would
have been by indulging in a “but for” analysis which goes something like this:
even though McCambridge was negligent in his driving, “but for” Mullette’s
negligence in her driving, McCambridge’s negligence would not have led to the
collision. The problem with this logic is that it relieves McCambridge of his
negligence without comparing his negligence to that of Mullette, in derogation of
the comparative negligence statute. See Ricklin v. Smith, 670 P.2d 1239, 1240
(Colo.App. 1983) (“Comparative negligence ‘abrogates the common law concept
of contributory negligence, thus relieving both parties of an all-or-nothing
situation, and substitutes apportionment of the damages by fault’”). The purpose
of the comparative negligence statute is to allow juries to compare relative
negligence and to apportion damages on that basis. . . .” Id. By failing to do this
necessary comparison and apportionment, even though it found McCambridge
negligent, the jury disregarded the instructions it was given and usurped the letter
and purpose of the comparative negligence statute.
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b. The jury’s verdict is also inconsistent in its finding that McCambridge was negligent, but not a cause of his own claimed injuries, damages or losses; these two findings are irreconcilable given that McCambridge’s acts of negligence were part of the same sequence of events in the seconds just prior to the collision.
Notwithstanding the first inconsistency, the jury’s verdict also has a second
inconsistency in that, after having found McCambridge to be negligent, it made the
further finding that his negligence was not a cause of his own claimed injuries,
damages or losses. In denying the motion for a new trial, the trial court simply
pointed to this finding to conclude “it is possible that a person could drive
negligently and such negligence not be the cause of the person’s injuries.” Order
Denying Defendant’s Motion for New Trial, CD at page 639. That may be true in
some cases, where there are negligent acts on the part of a plaintiff which are part
of a “sequence of events distinct and unrelated” to the incident in question. See,
City of Aurora v. Loveless, 639 P.2d 1061, 1064 (Colo. 1981) (in a wrongful death
case involving a police shooting, where the decedent’s wife contended the
defendant officer was negligent in confronting the decedent and shooting him, the
Court reconciled jury’s finding that police officer was negligent but not a cause of
the damages by concluding the jury could have found the officer was instead
negligent in failing to protect bystanders from injury or that he should have waited
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before going into the decedent’s house, or that he should have used some other
method of limiting the danger inherent in the decedent’s conduct; all of these
actions would have been distinct and unrelated to the shooting itself). So, for
example, in the accident context, such a finding of no causation may be possible
where a plaintiff is found negligent for texting while stopped at stoplight, where
that act of negligence is distinct and unrelated to the defendant’s negligence in
rear-ending the plaintiff’s vehicle. Though clearly negligent and contrary to
Colorado law, the plaintiff’s act of texting while behind the wheel would not be a
causative factor in a rear-end collision.
Here, on the other hand, it was not conceivable for the jury’s finding of
negligence on the part of McCambridge to be based on some separate and distinct
sequence of events. The only act of negligence on the part of McCambridge which
was argued and supported by the evidence in the case was his failure to look left or
right before entering the intersection, to see what was plainly visible, in violation
of the traffic law requiring persons to cautiously enter an intersection on a green
turn arrow. This act of negligence was clearly part of the same sequence of events
in the subject collision for which the jury found Mullette’s alleged negligence was
a cause. It is therefore impossible to reconcile the jury’s finding of negligence on
the part of Mullette in causing the collision (and McCambridge’s claimed injuries,
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damages or losses) with its finding that McCambridge’s act of negligence in the
same sequence of events was not a cause. See, Fletcher v. Porter, 754 P.2d 788,
790 (Colo.App. 1988) (in joint trial of personal injury claims of father driver and
minor passenger, defense verdict against minor passenger was irreconcilable with
finding that defendant’s 60% negligence was a cause of minor’s father’s injuries in
same collision); City of Aurora, 639 P.2d at 1064 (Quinn, J., dissenting) (jury’s
special findings that officer was negligent and that his negligence was not a
proximate cause of the plaintiff’s damages could not be reconciled and were
logically inconsistent where case was tried to jury solely on theory that was officer
was negligent in confronting the decedent at the family home); See also, H&H
Distributors, Inc., 812 P.2d at 663 (it was inconsistent for jury to find two parties
liable for failing to deliver shoes pursuant to a contract, but to award damages
against only one of them).
Further, it should be noted that Instruction No. 27 specifically instructed the
jury that, if it found McCambridge violated the traffic law requiring a person to
enter an intersection cautiously on a green turn arrow, it could only consider such a
violation if were a cause of McCambridge’s claimed injuries, damages or losses.
Again, the only basis for the jury’s finding of negligence on the part of
McCambridge was the fact that he failed to look either way before entering the
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intersection on the green arrow, in violation of this statute. The jury must have
considered the violation in coming to the conclusion that McCambridge was
negligent. Yet, to say the jury’s verdict can be reconciled by concluding the jury
simply found the violation was not a cause of McCambridge’s claimed injuries,
damages or losses – as the trial court did here – is directly contrary to how the jury
was instructed in Instruction No. 27!
Moreover, the jury was instructed here that a proximate cause is one which,
in natural and probable sequence, produced the claimed injury and without which
the claimed injury would not have been sustained. Instruction No. 29, CD at page
502. In other words, McCambridge’s own negligence in failing to look and see
that which must have been plainly visible before entering the intersection need
only be so directly connected with his injury that, but for such act, the injury would
not have occurred. E.g., Colorado Springs and Interurban Railway Co. v. Allen,
135 P. 790, 792 (Colo. 1913). Given the specific facts of this case, however, the
only logical basis which would support the jury’s finding that McCambridge’s own
negligence was not a cause of his own injuries, damages or losses is the principle
of intervening cause. See, e.g., Caulkins v. Albi, 431 P.2d 17 (Colo. 1967); Albo v.
Shamrock Oil & Gas Corp., 415 P.2d 536 (Colo. 1966). However, the evidence
was uncontroverted that McCambridge was seeking damages due to the subject
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accident. There was no evidence of an unforeseen intervening cause which might
have relieved McCambridge or Mullette of liability. Nor was the jury even
instructed on intervening cause.
Accordingly, there is no logical basis for reconciling the jury’s findings here,
requiring reversal of the judgment below.
c. Given the nature of the jury’s inconsistent verdicts, and the intertwined nature of the issues of liability and damages in this case, the required remedy is a new trial on both issues.
Where, as here, the jury’s verdict demonstrates it did not understand its
instructions, was misled, or ignored certain instructions, any change in the verdict
would be one of substance. Wulff v. Christmas, 660 P.2d 18, 19 (Colo. App. 1982).
Generally, a court may amend a verdict only with respect to matters of form, but
not substance. Id. It cannot resolve an inconsistency in a verdict in a manner
which changes the underlying determination made by the jury. Id. Further, where
a change in substance would result and the verdict has already been received and
recorded, and the jury discharged, the only remedy available is to remand for a
new trial. Id. That new trial should be a trial as to issues of both damages and
liability where – as here – those issues are so intertwined. Id.
Wherefore, Mullette respectfully requests the Court to find the jury’s verdict
is irreconcilable as to (1) its finding that McCambridge was negligent but assigning
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0% negligence to him; and (2) its finding that McCambridge’s claimed injuries,
damages or losses were not caused by his negligence in the same collision for
which it found Mullette’s negligence was a cause. In so finding, the Court should
reverse the trial court’s order denying the motion for a new trial, and remand this
matter back to the trial court for a new trial on both liability and damages.
B. The trial court should have entered a judgment notwithstanding the verdict on Mullette’s comparative negligence defense, and then set the matter for a new trial as to the percentage of comparative negligence between the parties.
1. Standard of Review and Preservation for Appeal.
“A jury’s verdict may be set aside and a judgment notwithstanding the
verdict entered only when no reasonable person could reach the same conclusion
as the jury.” Converse v. Zinke, 635 P.2d 882, 887 (Colo. 1981). The Court of
Appeals reviews de novo the grant or denial of a judgment notwithstanding the
verdict. Cardenas v. Financial Indemn. Co., 254 P.3d 1164 (Colo.App. 2011),
certiorari dismissed.
This issue was preserved for appeal in Mullette’s timely motion for
judgment notwithstanding the verdict filed March 15, 2011. [CD at page 573-574].
The trial court ruled on the issue in its order denying Mullette’s motion on April
13, 2011. [CD at page 642].
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2. Argument.
Notwithstanding the trial court’s error in denying Mullette a new trial based
on the inconsistencies in the jury’s verdict, the trial court also erred in denying
Mullette’s motion for a judgment notwithstanding the verdict. There was simply
insufficient evidence to support the jury’s finding of 0% negligence assigned to
McCambridge. On the other hand, the same uncontroverted evidence supports
some apportionment of negligence to McCambridge as a matter of law. Thus,
Mullette is entitled to judgment as a matter of law that McCambridge was
comparatively negligent to some degree, and a new trial to determine the
percentage of that comparative negligence.
According to C.R.C.P. 59(e), a judgment notwithstanding verdict may be
granted for either of the following grounds:
(1) Insufficiency of evidence as a matter of law; or
(2) No genuine issue as to any material fact and the moving party being entitled to judgment as a matter of law.
Mullette submits that a judgment notwithstanding the verdict is required
here on both grounds.
At trial, McCambridge testified unequivocally that (1) he never looked left
or right before entering the intersection on a left turn green arrow; (2) that there
22
was nothing blocking or impeding his view of the approaching Jeep Cherokee
driven by Mullette, had he looked left in the direction from which the Jeep was
coming; (3) that about a second elapsed from the time that he first became aware of
the Jeep Cherokee in his peripheral vision until impact occurred in this broadside
collision, and (4) McCambridge had not actually even begun the arc of his left
hand turn at the moment of impact. In other words, he had just begun entering the
intersection when the impact occurred, thereby conclusively demonstrating that
had he looked to the left before entering the intersection, he would have clearly
seen defendant’s approaching vehicle beginning to enter the intersection. In
addition, there was extensive uncontroverted testimony regarding the poor weather
and road conditions that day as well, requiring extra caution in entering the
intersection.
As set forth in the statement of facts above, the trial court properly instructed
the jury concerning the legal issues of negligence, assumption of the risk and
comparative negligence. Those instructions included Instruction No. 27, based
upon statutory negligence, requiring vehicular traffic facing a green arrow signal to
only “cautiously” enter the intersection to make the movement indicated by such
arrow; Instruction No. 34, in which the jury was also instructed that “[a] driver
must maintain a proper lookout to see what that driver could and should have seen
23
in the exercise of reasonable care”; Instruction No. 35, which instructed the jury
that, “[a]lthough a driver may have the right-of-way, the driver must exercise
reasonable care considering the existing conditions”; and Instruction No. 25, which
states that, “[t]o look in such a manner as to fail to see what must have been plainly
visible is to look without a reasonable degree of care and is no more effect than not
to have looked at all.”
Based upon the rule of law underlying all of these instructions, in particular
Instruction No. 25, and McCambridge’s unequivocal testimony that he did not look
left before entering the intersection when, had he done so, he would have seen
what must have been plainly visible, the trial court should have concluded as a
matter of law that some percentage of comparative negligence should have been
assigned to McCambridge. No reasonable person could have reached the same
conclusion as the jury did here in assigning him 0% negligence.
A conclusion that McCambridge was negligent as a matter of law is also
supported by a number of Colorado cases. See, Clark v. Bunnell, 470 P.2d 42, 45
(Colo. 1970)(“it is one’s duty to see that which is plainly visible”; “Our court has
repeatedly held that, for a person to look in such a manner as not to see what must
plainly be visible, it is no more effect that if he does not look at all.”); Ridenour v.
Diffee, 133 Colo. 467, 297 P.2d 280, 283 (1956)(“It was negligence as a matter of
24
law for defendant to drive his automobile into a street intersection at night in such
a manner that he could not stop within the distance objects were visible ahead.”
[emphasis in original.]); Union Pacific Railroad Company v. Cogburn, 315 P.2d
209, 216 (Colo. 1957) (holding that the above language from Ridenour was
applicable to the Cogburn case involving an action by an automobile owner and
automobile driver for damages arising out of a collision between the automobile
and a railroad train which was standing on a crossing at night where the
automobile driver knew he was approaching a railroad crossing but paid no
attention to his speed, his automobile lights, and who did not see the railroad car,
and was guilty of contributory negligence as a matter of law); Prentiss v. Johnston,
203 P.2d 733, 734 (Colo. 1949) (“We have in a number of cases held that the
driver of an automobile possessing the right of way must nevertheless exercise
reasonable care to avoid collisions with other vehicles. Also we have held that
whenever a driver looks for approaching vehicles ‘in such a manner as to fail to see
what must have been plainly visible was to look without a reasonable degree of
care and is of no more effect than if she had not looked at all’”).
The trial court essentially disregarded the above instructions and case law in
concluding that “the Plaintiff’s failure to check to see if a vehicle was running a
red light did not contribute to the Plaintiff’s injuries,” and in thus denying the
25
motion for judgment notwithstanding the verdict. Order Denying Defendant’s
Motion for Judgment Notwithstanding Verdict, CD at page 643.
Rather, based upon the above law in Colorado and the record below, the
undisputed evidence was insufficient as a matter of law to support the jury’s
finding of 0% negligence on the part of the plaintiff, when performing its
apportionment task. Stated otherwise, the uncontroverted evidence was sufficient
as a matter of law to support some apportionment of negligence to McCambridge.
Thus, though there is an admittedly high standard applied to granting a
judgment notwithstanding a verdict, this is an appropriate case for the Court to find
that such relief must be granted. Given the undisputed facts here, the Court can
find pursuant to its de novo review that Mullette is entitled to judgment as a matter
of law that McCambridge was comparatively negligent to some degree. The Court
should thus remand this matter to the trial court with instructions to set a new trial
for a determination of the percentage of McCambridge’s comparative negligence
which exists as a matter of law.
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V. CONCLUSION
WHEREFORE, Appellant Mullette respectfully requests the Court to reverse
the judgment below and remand this matter for a new trial as to both liability and
damages.
RESPECTFULLY SUBMITTED this 27th day of September, 2011.
WICK & TRAUTWEIN, LLC This document was filed and served electronically pursuant to C.R.C.P. 121 §1-26. The original signed pleading is on
file at the offices of Wick & Trautwein, LLC
By: s/Kimberly B. Schutt Kent N. Campbell, #13170 Kimberly B. Schutt, #25947 Attorneys for Defendant-Appellant
27
CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that a true and correct copy of the foregoing APPELLANT’S OPENING BRIEF was filed with the court via LexisNexis File and Serve, this 27th day of September, 2011, with a copy served on the following: David H. Johnson, Esq.
Liggett, Smith & Johnson, P.C. 425 W. Mulberry St., Suite 112 Fort Collins, CO 80521-2896 Attorneys for Plaintiff-Appellee
s/Jennifer E. Jones
[The original certificate of electronic filing signed by Jennifer E. Jones
is on file with the law offices of Wick & Trautwein, LLC]